IN THE COURT OF APPEAL OF
(CORAM: MROSO, J.A., KIMARO, J.A. And LUANDA
CRIMINAL
APPEAL NO. 26 OF 2007
THE DIRECTOR OF PUBLIC
PROSECUTIONS …... APPELLANT
VERSUS
GELE ABDI @ HERSI .…..………….….…..……...…
RESPONDENT
(Appeal
from the Decision of the High Court of Tanzania
at
Tanga)
(Mkwawa,
J.)
dated
the 31st day of March, 2006
in
Criminal Sessions Case No. 7
of 2001
------------
JUDGMENT
OF THE COURT
18 & 26 June,
2008
MROSO,
J.A.:
The
respondent was prosecuted in the High Court at Tanga for the murder of his
father in Muheza Township
1 - That
the trial judge erred in fact and law in failing to appreciate that there was
watertight evidence which proved the offence of murder.
2 - That the trial judge erred in law and fact in
believing that the prosecution case was weak because there was no indepth
investigation of the case.
3 - That the trial
judge erred in law and fact in wrongly finding that the prosecution had failed
to establish malice aforethought and, consequently, convicted the respondent
for manslaughter.
At the hearing of the appeal, the Director
of Public Prosecutions was represented
by Mr. Tangoh, learned State Attorney, and the respondent was represented by
Mr. A. J. Akaro, learned counsel.
The prosecution evidence which was
adduced to prove the charge of murder and which Mr. Tangoh contended was
watertight, was briefly as follows:-
The respondent and his late father were
not on cordial terms. There was an
acrimonious relationship between them because the appellant believed his late
father was not giving him his share in joint business ventures which they
engaged in. On the fateful night the respondent visited
his father in his house and a serious misunderstanding occurred between
them. The father became enraged and took
his loaded gun with a view to shooting the respondent. The respondent sensing imminent danger,
pushed his father who fell against the edge of his bed, knocking his head
thereby and the gun dropped on the bed.
Believing the father had died, the
respondent went to look for two young men who put the father onto a motor
vehicle which the respondent had borrowed a day earlier. The two young men took the body of the
deceased to a pit at a distance away and set it on fire where it was burnt “beyond recognition”, according to a
postmortem report which was produced in evidence at the trial.
When subsequently relatives of the
deceased querried the appellant about the whereabouts of his father, he told
them he had driven him to Tanga. However, suspicion focused on him and he took
a search-party to the place where the dead body of his father was found in the
pit. A postmortem which was done on the
charred body showed, according to the doctor who performed the postmortem
examination, that death was due to “severely
(sic) body fire burn”.
In the course of police investigation
the respondent made to a justice of the peace – Exhibit P2 – a voluntary
statement. In that statement he said
that after he went to his father on the fateful night he confronted him and
asked him why he (the father) was making false allegations about him that he
stole his cattle while in fact the father had the respondent’s cattle. It was then the father was incensed and aimed
a loaded gun at him. The respondent
proceeded to say in his statement –
“Nilikuwa umbali wa hatua 6
na wakati huo mlango ulikuwa umejifunga wenyewe. Nikapiga mahesabu ya kugeuka ili niufungue
nikaona ataniua. Nikaamua
kujitetea. Nikaenda kwa spidi kwenda
kumsukuma ili bunduki ianguke niweze kukimbia.
Nilipofanya hivyo, kwa kuwa alikuwa amesimama kutaka kunipiga risasi,
akaanguka na kichogo (sic) kikapiga kwenye ufito wa kitanda upande wa kichwani
na bunduki ikawa imeanguka kitandani kando yake. Hapo hapo nikaona baba anakoroma na
kutupatupa miguu na macho yanaanza kugeuka.
Nikakaa karibu nusu saa na kuhakika kwamba ameshakufa sababu mapigo ya
moyo yalisimama. Nikaona nijaribu
kuficha tukio.”
That
was when the respondent looked for and obtained two young men who were asked to
dispose of the body. Those two returned
to the respondent on the same night and reported to him where they had disposed
of the body. He paid them for the job
they had done.
At the request of the respondent’s
counsel, the trial court made an order under section 220 (1) and (2) of the
Criminal Procedure Act, 1985 for the respondent to be examined by a specialist
psychiatrist at the Isanga Mental Institution.
Dr. Julius Aligawesa who observed the respondent was of the opinion that
the respondent suffered from paranoid schizophrenia. Because of that illness, according to the
doctor, during attack the respondent lost touch with reality and, in that
state, “attacked and killed his father”. In other words, the Doctor was saying that
the appellant did not know what he had done because of insanity. The Doctor, of course, later contradicted
himself in his evidence when he said –
“The accused did not deny
killing his father”.
A
little later in his evidence the doctor also said –
“When I interviewed him
(the appellant) he told me that he killed”.
It
could not be, therefore, that the respondent did not know what he had done. At any rate, the trial judge, rightly in our
opinion, found as a fact that the respondent was sane at the time he caused the
death of his father.
In his defence he explained
substantially as he had said in his extra-judicial statement on what led him to
push his father who fell backwards on the edge of a bed and he believed he had
died. However, he denied that he had an
acrimonious relationship with his father and also denied that he led any one to
the place where the dead body of his father was recovered. He said he had acted in self-defence and then
that he must have lost his sense.
Was the prosecution evidence water-tight,
therefore, as contended by the Director of Public Prosecutions, to the extent
that the murder charge was proved to the required standard? It was conceded that there was no eye witness
to the circumstances in which the deceased died. We only have the evidence of the respondent
in that regard. Such evidence comprises
the extra-judicial statement – Exhibit P2 – which was part of the prosecution
case, and the respondent’s evidence in court.
We find difficulty to agree with Mr.
Tangoh that the respondent’s statement to the justice of the peace was evidence
that the respondent murdered the deceased.
The words from that statement which we quoted in this judgment earlier
seem to us to suggest that the respondent acted more in self-defence rather
than in fulfillment of premeditated murder.
But Mr. Tangoh asked why the respondent went to his father’s house at
night where he did not normally sleep unless he had formed the intention to
kill him. We ask, was that a necessary
inference? In the absence of evidence
that the deceased had forbidden the respondent to visit him at night, we see
nothing out of the ordinary for a son to visit his father at 9:00 o’clock in
the night. Furthermore, there was no
evidence that the respondent had carried with him any weapon to suggest that he
had mischievous plans to harm his father when they were together.
Mr. Tangoh also posed the questions as
to why the respondent had borrowed a motor vehicle and took it to the home of
the deceased during the fateful night and that the respondent had hired the two
young men in advance, knowing he would use them to take away the dead
body. Furthermore, it was asked why the
dead body was burnt and how he was able to take the search party to where the
dead body was found. It was Mr. Tangoh’s
submission that all those were circumstances which showed not only that it was
the respondent who killed the deceased but that he did it with malice
aforethought.
Mr. Akaro
said that none of those circumstances showed that the respondent had acted with
malice aforethought. As regards the
borrowing of the motor vehicle from a friend, the respondent himself explained
that he needed it to go to hospital. He
went to the hospital with it and from there he passed by his father’s home and
then the unfortunate incident occurred.
As for the two young men who took away the dead body, he looked for them
after he believed his father had died and he wanted to get rid of the dead body
to hide the fact that his father had died.
In the extra-judicial statement, which was prosecution evidence, the
respondent explained –
“Nikaona nijaribu kuficha
tukio”.
There is no evidence that the respondent
instructed the two young men to destroy the dead body by burning it. Again, according to the extra-judicial
statement, he had instructed the young men to burry the corpse –
“Ilibidi nizungumze nao ili
waende wakauzike huo mwili …..”
Mr. Tangoh made capital of the fact that
the respondent took the search party to the pit where the charred body was
found. But, with respect, according to
respondent’s extra-judicial statement again which was tendered by the
prosecution and which was admitted in evidence without objection from the
defence, the respondent admitted to causing the death of the deceased and even
before us he did not deny the fact. He
was able to know where the dead body was transported to because the two young
men reported to him after they had disposed of it.
We agree, therefore, with Mr. Akaro that
none of those circumstances either individually or collectively show that the
respondent killed his father premeditatively.
Mr. Tangoh criticized the trial judge
for observing in his judgment that the case lacked indepth investigation. The judge made the observation in the
following context –
“I must confess right from
the outset that this case is not at all free from difficulty. It has exercised my mind considerably. As amply demonstrated in evidence, there was
no eye-witness to the incident. The
matter is further bedevilled by lack of indepth investigation, as rightly
observed by Mr. Mramba (then defence counsel), as to what point in time and how
the deceased died. Did he die in his
bedroom or on the vehicle that carried him to the abandoned sisal farm at
Kicheba? Or did he die at Kicheba in the
hole where his charred body was found?”
Mr. Tangoh argued that it did not matter
where or how the deceased died. But as
rightly pointed out by Mr. Akaro, it was important to know where the deceased
expired. The defence appeared to hold
the view that the deceased died in his bedroom.
That was what the respondent said in his extra-judicial statement,
which, we need to repeat, was prosecution evidence, or they would not have
tendered it as evidence to prove their case.
So, if the death occurred in the bedroom, the killing at its worst was
manslaughter. The trial judge found it
was manslaughter and the respondent apparently accepted that verdict or he
would have appealed against it. If,
however, death was due to burns as a result of the dead body being set on fire,
there could have been more accused persons in the case, including the two young
men, with a possible conviction for murder.
Apparently the prosecution had toyed with that idea but the evidence in
support of that conclusion was hopelessly unreliable. The Doctor who performed the postmortem
examination kept contradicting himself as indicated earlier in this
judgment. Perhaps a more competent and
comprehensive forensic investigation could have thrown better light as to when
and where the deceased met his death. We
think that was what the learned trial judge had in mind and the criticism which
was leveled at him for the observation he made is unfair.
We are satisfied that the grounds of
appeal cannot be sustained. Indeed, at
the end of the day Mr. Tangoh conceded that the verdict of manslaughter was the
best the prosecution could have got in the case.
For the above reasons, we dismiss the
appeal in its entirety. The conviction
and sentence by the High Court are sustained
DATED at TANGA this 24th day
of June, 2008.
J. A.
MROSO
JUSTICE OF APPEAL
N. P.
KIMARO
JUSTICE OF APPEAL
B. M.
LUANDA
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
(F. L. K.
WAMBALI)
REGISTRAR
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